Pratice Area Highlights
Environmental and Superfund Representation Highlights
- Government attorney or supervisor for many successful EPA Region I Superfund cases; lead government counsel for the cornerstone case governing proposed Superfund settlements, US v. Cannons Engineering;
- Represented clients in the Lower Fox River PCB site in Wisconsin, the Housatonic River PCB site in Massachusetts and Connecticut, the York Oil site in New York, the Beede Waste Oil site in New Hampshire, and numerous other state and federal hazardous substance and RCRA sites, including action sites;
- Represented clients in sediment sites with exposure potentials exceeding $500 million, Lower Fox River PCB site, Housatonic River PCB Site, Pine Street Barge Canal coal tar site, including nationally renowned multidisciplinary teams of technical and legal professionals;
- Former deputy chief enforcement counsel of EPA national RCRA enforcement program.
- Represented owners of solid waste recycling facility in state enforcement action alleging speculative accumulation of solid waste; Represented property owners whose property received, without authorization, illegal disposal of asbestos containing material in state enforcement action and cleanup action brought against disposers; Managed compliance activities for inadvertently mixed sanitary and industrial wastewater; Assisted operators of public water supply in permit enforcement matter; Defended federal stormwater discharge permit enforcement action; Defended local and state enforcement of wetlands Order of Conditions.
Allocation Consultant Practice Highlights
- Selected as allocation consultant for Lower Passaic River Study Area site, among the largest cleanup projects in the nation.
- Have achieved greater than 90 percent participation in all allocation processes conducted as neutral, as government attorney or as private counsel.
- Developed allocations that were approved by two Circuit Courts of Appeal (Cannons Engineering Superfund Sites, MA and NH; Caldwell Trucking Superfund Site, NJ).
- Worked with multidisciplinary panel of technical experts for private client on Lower Fox River Superfund Site to develop a remedial plan that integrated CERCLA remedial and natural resource damages concerns into a single approach intended as an alternative to EPA's remedy and as a basis for allocation and settlement.
- Served as neutral Allocation Consultant and mediator at a former World War I chemical munitions plant at which subsequent chemical manufacturing, reclamation and disposal was allegedly conducted; settlement process included 20 mediations seeking individual de minimis settlements, development of allocation methodology and preparation of final allocation report which led to a comprehensive allocation agreement among the PRPs, including for the United States-as-defendant through its operation of WWI munitions plant.
- Developed pioneering (EPA gold medal winning) case management plan for case involving incinerator and three midnight dumping sites with 600 PRPs; developed first-in-nation multi-party de minimis cash-out settlements using innovative cost estimation techniques to settle sites at which RIFSs were not complete.
- Guided unsophisticated property owners whose liability arose from contamination at adjoining manufactured gas plant through allocation process leading to internal settlement; negotiated settlement on behalf of landowners to allocate costs between landowners and MGP plant operators.
- Developed allocation for municipal and industrial waste landfill; allocation enabled PRPs to negotiate successful RD/RA settlement.
- Developed allocation expert report and testified concerning allocations for settling and non-settling parties in light of allocation agreement previously reached among settling parties; allocation opinion adopted by District Court (court viewed my testimony to be “particularly knowledgeable and candid,” adopted my allocation as “an equitable and fair allocation”) and upheld by 3rd Circuit.
- Guided lesser-involved PRPs in developing allocation plan to reach settlement with major PRP and US agency defendants (35% share); allocation agreement provided unchallenged basis for RIFS ACO, Consent Decree settling OU1 and OU2 pay-as-you-go and cash-out settlers, and for third- and fourth-party litigation.
- Developed allocation for 80 PRPs at solid and industrial waste landfill during active discovery; enabled PRPs to negotiate successful RD/RA settlement.
- Developed and negotiated allocation agreement and settlement with 300 PRPs at chemical recycling facility; first-known settlement with bank mortgage-holder of site property.
- Negotiated allocation agreement and settlement with 150 PRPs including federal and state agencies at chemical waste lagoon facility.
- Served as mediator in lawsuit against the United States seeking costs incurred in environmental cleanup of 15 World War II and Korean War manufacturing plants.
Expert Witness Services Highlights
- Served as allocation expert witness concerning allocation of liability for cleanup of a municipal airport, formerly a World War II air force base enabling comprehensive settlement.
- Served as allocation expert witness concerning cleanup of Cold War Era Distant Early Warning System communications facility transferred to State of Alaska for use as middle school enabling comprehensive settlement.
- Served as allocation expert witness concerning cleanup at Government-Owned Contractor-Operated Air Force base.
- Served as allocation expert witness concerning liability of successive owners and operators of steel manufacturing plant enabling comprehensive settlement.
- Served as allocation expert witness concerning divisibility of harm among partial owners of Superfund site.
- Served as allocation expert witness concerning responsibility for differing air contaminants emitted by industrial facilities.
- Developed Superfund site allocations upheld by First and Third Circuit Courts of Appeal.
- Expert witness for verdict quashing $25m environmental indemnification, deemed "most helpful expert" in support of verdict.
- Successful testimony as allocation expert witness in bench trial on Issue of Damages at Caldwell Trucking Superfund Site acknowledged by court: “The Court finds that two of Plaintiff’s witnesses, Mr. John P. McBurney and Mr. E. Michael Thomas to have been particularly knowledgeable and candid with the Court and both stood up well to direct and cross examination. . . . Mr. Thomas is Plaintiff’s allocation expert who is an attorney with significant experience in allocating cleanup responsibilities at environmental sites. The court deems these witnesses to be particularly credible and affords substantial weight to their testimony.”
Zoning, Land Use & Real Estate Practice Highlights
- Top-Rated 2014, 2015 Land Use and Zoning Lawyer featured in The American Lawyer, Corporate Counsel and The National Law Journal.
- Advice and representation before local governmental boards concerning permitting, zoning, wetlands, conservation commission and planning board review matters.
- Counseling and representation in residential and commercial real estate closings, leases, purchase & sale agreements, affordable housing, and development issues.
- Represent individuals, condominium associations, and citizen groups before conservation commissions, planning boards and zoning boards concerning development proposals, permitting decisions and other municipal proposed activities.
- Represent citizens in lawsuit seeking to enforce public waterfront access agreement in waterfront apartment tower development projects.